Church of God Mission International Australia (Migration)

[2021] AATA 768

Church of God Mission International Australia (Migration) [2021] AATA 768 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jimmy Dada LETONA

VISA APPLICANTS:  Mr Idika Kirk JOSEPH
Miss Emmanuelle Diamond Odichimma JOSEPH
Miss Josephine Catherine Ifeoma JOSEPH
Miss Glory Chidumebi JOSEPH
Miss Favour Chiamaka JOSEPH
Mrs Odichimma Mercy JOSEPH

CASE NUMBER:  1902251

HOME AFFAIRS REFERENCE(S):          BCC2018/4391154

MEMBER:Denis Dragovic

DATE:4 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Activity (Class GG) visas.

Statement made on 04 January 2021 at 1:33pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – no adequate means or access to adequate means to support himself – applicant has limited documented income –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 408.215, 408.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2019 to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 October 2018. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.408.215 of Schedule 2 to the Regulations. This requires that ‘the applicant’ have adequate means or access to adequate means to support himself. As the position the applicant is being sponsored for does not include remuneration and the applicant’s bank accounts were limited to having less than two thousand Australia dollars the application was refused. The delegate noted that in the application form the applicant wrote that their stay is ‘self-funded’. At the time of application there was no suggestion that the church would provide accommodation, food or living expenses.

4. The delegate refused the visas of the remaining applicants on cl.408.311 which requires the applicants to be family members of a person who holds a Temporary Activity visa. In this case, as the primary visa was refused, the family members were refused.

5. An application for review was received by the Tribunal. The review applicant in this instance is the Church of God Mission International Incorporated represented by Pastor Jimmy Dada Letona rather than the visa applicants as the visa applicants were off-shore at the time of application. Although they were off-shore at the time of application they subsequently arrived to Australia and have remained since.

6. The visa applicant, being the first named applicant, appeared before the Tribunal on 26 November 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. Specifically that the case is based upon a single issue, this issue is not dependent upon large amounts of documentation and there was no indication that this case would be different, the applicant was represented and the applicant speaks English thereby minimising the challenges of interpretation over video. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. No objections were raised during outreach to test video conferencing equipment, in the hearing invitation forms which ask whether there may be any impediments to participating in the hearing and on the day of the hearing. As such the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The Tribunal also received oral evidence from Jimmy Dada as well as a witness, Maria Krause.  

8. The review applicant was represented in relation to the review by its registered migration agent.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The visa applicant is a pastor who is being recruited by the sponsor to performal pastoral duties as a full time Minister of Religion. The sponsor and review applicant is the junior pastor in the church in which the visa applicant is the senior pastor. The visa applicant states that he requires two more years in Australia to build the capacity of the junior pastor.

11. Clause 408.215 requires that

    The applicant has

    (a) adequate means to support himself or herself; or

    (b) access to adequate means to support himself or herself;

    during the period of the applicant’s intended stay in Australia.

12. I note that cl.408.611 lists the conditions that a s.c.408 visa is bound by and includes 8107. Relevant to the applicant is paragraph (2):

    If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or

    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

13. As such the issue in this case is not only whether the visa applicant has adequate means or access to adequate means to support himself but whether the means would be legal in that he would access the means only when abiding by the conditions imposed on the visa. This is relevant to the review as the applicant has been supporting himself and his family, in part, by working as a cleaner and subsequently in the disability care sector.

14. As recorded in the delegates decision, which was provided to the Tribunal by the applicant, the applicants had listed the following bank balances in their application dated 9 October 2018:

    CIMB Bank Statemen tof Accoun itn applicant's name dated 15/09/2018. Closing balance was 1,537.92RM. As of the date of decision, 1,537.92RM is equivalent to $520.12AUD.

    Bank SA Incentive Saver Accoun St tatement in Miss Glory Joseph's name dated 08/05/2018. Closing balance was $534.91 AUD

    Bank SA Incentive Saver Accoun tBank statement in Miss Favour Joseph's name date 08/05/2018. Closing balance was $530.58AUD

    Bank SA Incentive Saver Accoun Bt ank statement in Miss J C I Joseph's name dated 23/06/2018. Closing balance was $329.60AUD

    Bank SA Incentive Saver Accoun tBank statement in Miss EDO Joseph's name date 23/06/2018. Closing balance was $329.60AUD.

15. In the application the applicant answered the following in response to the listed questions:

    Will remuneration be received for undertaking the activity in Australia?

    “No”

    Give details of how the stay will be funded:

    “The applicant's stay in Australia is self-funded.”

16. Following the refusal and in support of the applicant’s claim that he has adequate means to support himself the following documents were submitted to the Tribunal prior to the hearing:

    a.Pastor Church Covenant signed 20 September 2020 covering two years from 31 October 2020 to 31 October 2022 including the following commitments:

    i.Church will pay for moving costs

    ii.Church offers the use of the ‘Church-owned parsonage’

    iii.Church to support the pastor and family financially to a level at the discretion of the church committee leaders

    b.The applicant’s bank account statement from 26 August 2020 to 30 October 2020 with BankSA showing a total of $34,875

    c.A letter from the Commonwealth Bank stating that as of 30 October 2020 the applicant and his wife have available $35,036

    d.Other applicants bank statements with balances of below one thousand dollars.

    e.Savings in Nigeria amounting to approximately $300 in addition to foreign currency of approximately USD2,500

    f.A document identifying a land in Nigeria which is owned by the visa applicant

    g.In Malaysia the closing bank balance as of 15 September 2018 was 1,537 Ringgit in the name of the first named visa applicant.

17. There is a clear difference in the applicant’s financial situation from the time of his visa application to the time of the Tribunal appeal. Whereas before he had in total just over two thousand dollars, in less than two years his and his family’s bank accounts have swelled to over seventy thousand dollars.

18. I noted in the hearing that at the stage of the Departmental application the applicant had not submitted his own bank account. The applicant claimed that he submitted everything at the Departmental stage, but that there was a misstep somewhere. He said that the money he has in the bank account is from his church. In response to my question as to where he obtained the money, he claimed that his church has over 10,000 congregations around the world. He said that they are a mission based church that supports one another. He explained that they are buying a church hall in Malaysia through support from funds from the diaspora around the world. He said that they also have people in Australia who are supporting him.

19. He said that before the COVID pandemic his congregation had between 30 and 50 parishioners.

20. He said that he can’t remember how much money was brought with him from Malaysia where he was a pastor for the same denomination, but he said that he had brought enough to keep him going for the first year in 2010 to 2011. Following the applicant’s arrival to Australia in August 2010 he began studying a Certificate IV in Christian Ministry which he completed in January 2014. He then studied a Diploma in Disability which he completed in 2017. He said that he did the studies to better understand the community as the Australian culture practices their faith differently.

21. During this period the applicant was working. He said that he began work on the 28 February 2011 in a cleaning job with Royal Cleaning which he held through to 2013. Then he got another cleaning job with Izzat Cleaning starting August 2013 through to 2016. Then in November 2016 he started working at Baptist Care where he was limited by his student visa to a maximum of 20 hours per week.

22. The applicant explained that since 2011 his cleaning jobs and work with Baptist Care has netted him an income of between $1,000-$1,500 per fortnight. This was limited by the number of hours his visa allowed him. Since he has been on his bridging visa the applicant said that he has been able to work more hours. In a post hearing submission he provided his summary of earnings statement from Baptist Care which showed a fortnightly payment of $1,283. In addition he provided a five month summary earnings statement from July 2020 to December 2020 which showed total gross income of $33,408.91. The applicant also provided an earnings statement from Nursing Agency SA which showed average weekly earnings across a period of nearly three years amounting to $288.26. In addition two superannuation statements were provided that showed as of the end of 2020 the applicant had contributions totalling $3,384.65 and $30,091.

23. The applicant and his family currently live in a property in Mawson Lakes. They have been there since July 2018. The applicant said that the church he established is paying the rent of $400 per week. The applicant said that the church is run through donations and tithes, but also special donations responding to needs. He said that people give him donations directly in an envelope or through bank transfer, sometimes two hundred dollars and sometimes more. The applicant said that offerings and the tithe go to the church whereas the rent for the house he lives in is from individual cash donations. A letter was included in post hearing submission from Catherline Lee stating that she is ‘happy to support them however I can’ in reference to the first named applicant and his family.

24. The applicant said that the church had substantial growth over the period 2019-2020 and that the church can afford to pay him based upon this substantial income. I asked for evidence of this to be provided in post-hearing submissions. None was provided and as such under s.359A of the Act adverse information was sent to the applicant by correspondence noting that according to the Australian Charities and Not-for-profit Commission the Church of God Mission International Incorporated submitted an Annual Information Statement showing its income as being $2,872 and its expenditure $3,793 for the FY2018-2019. The letter explained that it was relevant to the review because it indicates an inability of the church to provide support and as such that the visa applicants do not have adequate means or access to adequate means to support themselves. In response the applicant submitted a bank statemented through to 29 December 2020 showing a bank balance of $1,576.

25. The applicant claims that the money he has accumulated in the bank account is savings from his work. I put to him that he had given me an estimated income of between $1,000-$1,500 per fortnight which would add up to $26,000 to $39,000 per year and that such a sum would not leave much left over to contribute towards savings. He said that he had worked more than what he said plus people would donate money to him.

26. I compared the account numbers of BankSA accounts from the statements submitted at the time of application to those statements submitted to the Tribunal. They were the same. As such it appears that the bank balances in the family’s accounts was and remains largely the same over the past three years. The only account that appears to be substantially different is the first named applicant’s. As noted earlier, his bank statement was not submitted at the Departmental stage. Two bank accounts were submitted to the Tribunal one a letter from the Commonwealth Bank, the other a statement. The statement shows a closing balance of $34,875. But this arose from deposits that were made on the 29 October 2020 and the 30 October 2020. As of the 28 October 2020 the balance was $1.09 and then six deposits were made totalling $35,158.

27. The applicant said that the rise in savings came from what money he was putting aside over time. He said that the average of his income is far more than what is stated. He said that he doesn’t have a lot of expenses such as a car as they were donated to him as well as free rent over the years he has been in Australia.

28. The witness, Pastor Letona, said that a lot of the congregation are real believers and they really want to help. He supported the view of the Reverand that people would contribute money to the visa applicant.

29. A post-hearing submission from Pastor Letona emphasised that the majority of the income the applicant receives does not come from the Church but through personal donations. In this letter the pastor confirmed that the Church would pay for moving costs, that the Church would rent a place for the applicant and his family. He gave the example of his own donation to the applicant as evidence of the willingness of people to support the applicant. The letter further stated that the Church Committee decided to provide to the applicant $404 per month in support in addition to any personal support he is provided.

30. The second witness, Maria Krause, was the Church’s public officer, she said that she did the accounts and administration in 2018. She said that she could not remember the income at that time nor could she remember how payments were made to the visa applicant. I invited the representative to present a statutory declaration with any additional evidence that Ms Krause may choose to provide in a post hearing submission. None was received as of the date of this decision.

31. While I accept most of the applicant’s evidence the only issue in dispute is the matter of the approximately seventy thousand dollars appearing in his bank accounts. It is apparent from the Bank SA statement that these arose from recent deposits. An opportunity through post hearing submissions was given for clarity to be provided regarding the timing of the deposits into the Commonwealth Bank account as no statement was provided but only a letter. None was offered. Although the applicant claims that he has managed to save more than he has declared in the past and that his income has been greater including money accured through donations I do not accept that this has led to a seventy thousand dollar windfall. I do not accept that half of that was owned by the applicant but held in cash and then deposited over a period of a few days just prior to the hearing. Instead, I find that the money is someone elses. It is not clear whose but this does not matter. What is relevant is that I do not accept that the applicant has access to it as a means to support himself without having to return it or repay it. Either returning or repaying it would be problematic from the perspective of the visa as he would have to work in a capacity outside of being a pastor.

32. In conclusion, the applicant has limited documented income which is largely generated through his employment as a cleaner and subsequently in the disability sector. One of his bank accounts shows very low levels of savings until six substantial deposits were made into the account. Following a discussion of this with the applicant at the hearing including giving the applicant an explanation of why it was important to see a steady growth in savings (to alleviate concerns outlined in [31]) an invitation was made to show through a post hearing submission that the savings were being generated over a longer period of time (i.e. the Commonwealth Bank account which simply stated the sum available and did not show a list of transactions) but no submission was made. Although it is possible that the applicant would be able to support himself through work, the condition that is applied to subclass 408 ‘Religious worker’ visas (8107) does not allow for work that is ‘inconsistent with the activity in relation to which the visa was granted’. Cleaning or working in the disability sector is, I find, inconsistent with religious work. As the sponsor is unable to provide financial support due to a very limited financial capacity and the employment contract clearly states that there is no financial remuneration other than the provision of a house and moving costs along with most recently a commitment to provide $404 per month, I find that the applicant is unable to meet the criteria. In making this decision I acknowledge the commitment made by the parishioner, Ms Lee, and statements by the sponsor and applicant that the visa applicant receives cash donations and material support but I am not convinced that such contributions would suffice to cover the loss of income from his work. I also acknowledge the cash in his bank accounts but as noted in [31] I am not satisfied that he has control over those assets nor am I satisfied that the global church will provide the necessary support. As I am not satisfied that the applicant would be able to support himself while meeting the conditions which would be imposed on his visa I find that cl.408.215 is not met.

33. In relation to the secondary applicants the appropriate action is to affirm the decision in light of the finding that the first named applicant does not satify cl.408.215 as cl.408.311 requires the secondary applicants to be family members of a person who holds a Temporary Activity visa.

1. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

   DECISION

2. The Tribunal affirms the decision not to grant the visa applicants Temporary Activity (Class GG) visas.

   Denis Dragovic
   Senior Member